New York Medical Malpractice Trials,
Hypothetical Questions on Cross
New York Law Journal, Friday, December 29, 2006
Ben B. Rubinowitz and Evan Torgan
In our last article we suggested that hypothetical questions
were an extremely useful trial technique when working with your
own expert witness.
Although the Civil Practice Law and Rules (CPLR) do not
require the use of hypothetical questions to elicit expert
opinion, the use of such a questioning technique on direct
examination serves two purposes:
• First, hypotheticals allow you, as the trial lawyer, to
review and reinforce in the minds of the jury favorable facts
which have already been brought out on your direct case.
• Second, by asking your expert to assume as true the facts
which underlie his opinion, you provide immediate context and
support for that testimony.
While this technique is one which can serve you well on
direct examination, it can also provide a powerful tool for
cross examination. If utilized properly, the use of a
hypothetical on cross will allow you to either undermine the
credibility of the opposing expert or allow you to make the
opposing expert your own witness and present opinion evidence
which supports your position in the case.
To correctly attack an opposing expert's opinion through the
use of a hypothetical question, the witness must be carefully
and methodically set up before the hypothetical question is even
posed. The expert witness must be carefully boxed in and all
doors of escape closed off before the attack is made. Once the
proper set up has been undertaken, the expert will be put in the
unenviable position of being stuck between a rock and a hard
place. Indeed, the expert will be forced either to agree that
your position is correct or lose credibility by trying to
maintain an unsupportable opinion.
Take, for example, a typical medical malpractice case in
which the defendant himself was asked whether he reviewed the
prior medical records of his patient, the plaintiff.
In a not so unfamiliar response the defendant stated, 'I
don't remember if I reviewed those records. It is my custom and
practice to review the records but I did not make a note about
it.' Needless to say, the defense calls an expert witness who
says that there were no departures from accepted standards of
medical practice.
'Voice of Reason' Questions
Before ever going near the hypothetical question, the
skillful cross-examiner must lock the witness into his opinion.
The best set-up is one brought out through the use of 'voice of
reason' questions. Voice of reason questions are those designed
and posed in such a way that if the witness disagrees with them,
he immediately will be made to look foolish:
Q: Doctor, you've been teaching at a major
hospital for more
than 20 years, true?
Q: During that time you've taught both residents and medical
students, correct?
Q: You've taught them the importance of taking an
accurate
patient history?
Q: You've shown them firsthand how to write up the history in
the chart?
Q: You've taught them to fully note the
patient's medical history, true?
Q: You've explained that these notes must include all
relevant data, right?
Q: You've also taught them that they must let the
medical
chart reflect what they have done, correct?
Q: To the extent that they failed to take an adequate history
you would find that unacceptable, right?
Q: To the extent that they omitted crucial facts from the
chart you would correct your students, true?
Q: To the extent that they didn't note in the chart what they
did that would be wrong, true?
Q: The goal, after all, is continuity of
medical care?
Q: The goal, after all, is properly caring for the patient,
true?
Q: The goal is to allow others reviewing the chart to see
first hand what was done regarding the patient?
Q: After all, you would agree that if your resident failed to
make appropriate notes that would be wrong, true?
Q: Indeed, if your resident didn't make any notes that would
be a departure from accepted standards of medical conduct, true?
The witness has little choice but to agree with these basic
questions. By setting them forth, however, you have committed
this witness to the importance of obtaining an accurate history
and properly recording it.
Giving Witness Only Two Ways to Go
Next, you can shift your line of questioning to the absence
of any noted history in your case:
Q: Doctor, when you reviewed the records in this case, one of
the things you looked for was the history which the defendant
doctor recorded, right?
Q: As we discussed earlier, if he reviewed the prior
medical
records, you would expect that he would make a note of it, true?
Q: Did you see any notation anywhere that the defendant made
reflecting that he had reviewed the plaintiff's prior records?
Q: Did you read anything in this case which suggests that the
defendant was aware of the plaintiff's medical history?
Q: Did you form an opinion with regard to whether or not the
defendant had reviewed the plaintiff's medical history prior to
examining him?
At this point, the witness only has two ways to go: he can
either offer testimony that he has no opinion on the subject, or
if he wishes to credit the defendant's story, claim that he
believes the defendant did see the records because he testified
that it was his normal practice to do so. If he chooses the
latter course, you can go further with your set up:
Q: Doctor, you're not here as an advocate for the defendant,
are you?
Q: Your job is to analyze the case, and give your unbiased
opinion, true?
Q: You had never met the defendant before this case, right?
Q: You had no opinion about what type of doctor he was,
right?
Q: But you assumed that he had read the prior records because
that is what you'd expect of any competent doctor, true?
Q: Because you know that failing to review prior medical
records would be unacceptable?
The Hypothetical Question
Now, you can attack by using a hypothetical question:
Q: Doctor I want you to assume, in fact, that the defendant
made no notes concerning any review of the patient's prior
medical history. I want you to further assume that the defendant
never reviewed or even looked at the patient's prior medical
history. My question is this: Wouldn't you agree that the
failure to review the patient's prior history is a departure
from good and accepted standards of medical practice?
Here, the expert has a choice. He can either agree that there
was a departure, thereby allowing you to make this witness your
own or he can fight. If you get the admission that it would be
malpractice, you now need only to convince the jury that your
version of the facts (the doctor didn't read the other records)
is true. If, on the other hand, the witness resists, the beauty
of the 'voice of reason' set up is that he can be made to look
ridiculous.
Assume he answers 'No, it is not a departure.' Now, you can
continue with your cross:
Q: Doctor, we know clearly that you expect your residents to
make notes, true? Q: You expect them to note their review of the
patient's history, right?
Q: You even take the time to note that you have reviewed the
prior history?
Q: Here, we know not one single note was made by the
defendant concerning his review of the medical history, true?
Now, by changing the tone of your voice and adding a touch of
sarcasm the following questions can be asked:
Q: And, of course, you are telling this jury that no notes is
the proper way to care for a patient, true?
Q: Obviously, not making notes is one of the best ways to
ensure proper healthcare, right?
Q: Doctor, are you really saying to this jury that 'no notes
is good practice'?
Hypothetical questions also allow you to commit the expert to
a different outcome or opinion based on an assumed set of facts.
If the cross-examining attorney believes that the jury will be
persuaded by a different set of facts than those assumed by the
opposing expert, the hypothetical allows you to argue that the
opposing expert agrees completely with your position. Here, if
the supportive facts used in your hypothetical more reasonably
reflect the truth of the factual dispute at hand, an opposing
expert can be turned into one who supports your final argument.
Take, for example, an economist called to the stand to offer
an economic projection of the future medical specials in a
damages case. A typical set of facts might be one in which the
plaintiff has presented medical proof that the plaintiff, a
40-year-old man, will require physical therapy three times a
week for life at a cost of $120 per session. Based on these
numbers, which the plaintiff's attorney has asked his economist
to assume as true, an economic projection is offered. The expert
economist offers his opinion that the future medical cost of
physical therapy is $3,001,517.
While a defense attorney has the option of calling his own
economist and challenging those numbers on his direct case, the
defense attorney does not have to wait for that portion of the
trial to begin his attack.
Here, a hypothetical question can be posed on
cross-examination in such a way as to challenge the numbers put
up on the blackboard by the economist without questioning the
integrity or credibility of the economist himself:
Q: Professor, in order to reach your opinion as to the future
cost of physical therapy you assumed certain facts to be true,
correct?
Q: One of the factors taken into your projection was the
growth rate, true?
Q: In addition to these factors, you assumed the cost of an
individual session of physical therapy to be $120, true?
Q: You also assumed the plaintiff's life expectancy to be
36.2 years, right?
Here, the hypothetical question can be posed:
Q: Professor, I want you to assume the following facts to be
true. Assume that we will call a physician on our direct case
who will offer his opinion that the cost of physical therapy is
not $120 per session but is only $95 per session. Assume further
that this same physician will testify that based on his
examination of the plaintiff as well as his review of the
medical records that the plaintiff will need physical therapy,
but will only need it one time per week. Assume further that
this physician will testify that the plaintiff's life expectancy
is not 36.2 years but is only 20 years. Assuming those facts to
be true, what is your opinion as to the future cost of physical
therapy?
A: Assuming a 7 percent annual growth rate in medical costs,
the total number, following your assumptions, would be $221,633.
By questioning in this manner, the defense attorney does not
have to pick a fight with the plaintiff's expert. Indeed, his
argument on summation will stress the fact that the opinion of
the plaintiff's economist is only as good as the facts on which
it was based. Moreover, if the expert's responses are in line
with his own calculations, he has effectively simplified his
argument for the jury: It needn't concern itself with dueling
economic testimony, but instead, focus on the testimony
regarding the cost of therapy coupled with the extent and
duration of plaintiff's need for it.
Conclusion
Whether you are using hypothetical questions on
cross-examination to force an opposing expert to assume facts
inconsistent with his overall opinion or you are prompting a
technical expert to re-tool his opinion based upon different
data, this examination technique is an extremely powerful tool
useful in defusing the power of an adversary's expert.
Ben B.
Rubinowitz, a partner at
Gair, Gair,
Conason, Steigman & Mackauf, is an adjunct professor at Hofstra
University School of Law and Benjamin N. Cardozo School of Law. Evan Torgan, a member of Torgan & Cooper, is an
adjunct professor at Cardozo School of Law.
Richard Steigman, a
partner at Gair Gair Conason, assisted in the preparation of
this article.
12/29/2006 NYLJ 3, (col. 1)
